Thompson v. Capricorn Pacific Apartments CTS 5587

[2013] QCAT 227

CITATION: Thompson v Capricorn Pacific Apartments CTS 5587 [2013] QCAT 227

PARTIES:	Mark Kenneth Robert Thompson (Applicant)
v
Capricorn Pacific Apartments CTS 5587 (Respondent)

APPLICATION NUMBER: OCL033-12

MATTER TYPE: Other civil dispute matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Sandra G Deane, Member

DELIVERED ON: 17 May 2013

DELIVERED AT: Brisbane

ORDERS MADE: 1.     The application is dismissed

CATCHWORDS:

Body Corporate – application for adjustment to contribution schedule lot entitlements – whether an incomplete adjustment matter – whether a division 4 dispute 

Acts Interpretation Act 1954 (Qld), s 14B

Body Corporate and Community Management Act 1997 (Qld), s 46A, s 47, s 47A, s 47B, s 48, s 379, s 385, s 387, s 389, s 391, s 397, s 399, Schedule 5A
Body Corporate and Community Management and Other Legislation Amendment Act 2013 (Qld)

Beaven and Anor v Hampton Court Apartments [2013] QCAT 063
Glynn v Body Corporate for Expansion Court [2012] QCAT 321

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

1. Mr Thompson is a lot owner in an apartment complex consisting of 12 lots.  Mr Thompson seeks an adjustment so that the contribution schedule lot entitlements are all equal. 

2. The contribution schedule lot entitlement is generally the basis for calculating the lot owner’s share of the amounts levied by the body corporate and the value of the lot owner’s vote on ordinary resolutions if a poll is conducted.[1]

   [1] BCCM Act, s 47(2).

3. There is little evidence before the Tribunal.  The evidence before the Tribunal indicates that the contribution schedule lot entitlement has not changed since the scheme commenced.

4. The Tribunal’s power to order an adjustment is limited.  I am not satisfied that an adjustment should be made.

5. The Body Corporate and Community Management and Other Legislation Amendment Act 2013 (Qld) (the 2013 Act) recently amended the Body Corporate and Community Management Act 1997 (Qld) (the BCCM Act) relevantly in relation to adjustment of lot entitlements.

6. On the commencement of the 2013 Act an incomplete adjustment matter[2] ceases to have effect.[3]  This application was filed prior to the 2013 Act commencing.[4] It is necessary to consider whether this application has ceased to have effect.

   [2] Ibid, s 397.

   [3] Ibid, s 399.

   [4]        27 March 2013.

7. Having reviewed each of the matters set out in Column 1 of Schedule 5A I find that this application is not an incomplete adjustment matter as no order had been made and there is no evidence before the Tribunal that there has been:

   a)a motion proposing adjustment of the contribution schedule;[5]

   b)a decision of the Body Corporate or committee in relation to such an adjustment;[6]

   c)an application under s 385(8), s 387(6) or s 389(4) of the Act;

   d)an adjustment order, a subdivision, an amalgamation or a boundary change of a lot or a material change since the contribution schedule was decided.

   [5] BCCM Act, s 379(2)(a).

   [6] Ibid, s 385(4), s 387(2).

8. Whilst this application is an application under chapter 6 for resolution of a dispute it is not of a division 4 dispute[7] because of the matters set out in [7](d).

   [7] Ibid, s 397 .

9. The Tribunal is therefore required to determine the substantive application for adjustment.

10. In schemes established before the commencement of s 47B of the BCCM Act[8], as this one was, an owner of a lot can apply to the Tribunal for an adjustment to the contribution schedule where the scheme is affected by a material change since the last time the contribution schedule was decided.

    [8]        14 April 2011.

11. As stated earlier in these reasons there is no evidence before the Tribunal in relation to a material change since the last time the contribution schedule was decided.

12. Section 391 of the BCCM Act provides that ss 47A to 48 also apply to a scheme established before commencement i.e. before 14 April 2011. Mr Thompson contends that an adjustment should be permitted because the equality principle[9] should apply.

    [9] BCCM Act, s 46A.

13. This appears at odds with s 47B (2) which expressly refers to a scheme established after the commencement of the section.

14. I have had regard to the explanatory notes as I am permitted to do.[10]  The objectives are expressed to permit a limited ability to adjust contribution entitlements for schemes established before the commencement of the amendment act. 

    [10]        Acts Interpretation Act 1954 (Qld), Section 14B.

15. Other than the express reference in s 47B (2) there is no reference to when the scheme was established in ss 47A to 48.

16. If s 391 was to override s 47B(2) this would give an extensive rather than limited right to adjust contribution entitlements.

17. In my view the preferable construction is that s 391 does not override the express limitation in s 47B(2) but was to clarify that the other provisions in ss 47A to 48 which did not refer to when the scheme commenced were to apply generally.[11]

    [11]Beaven and Anor v Hampton Court Apartments [2013] QCAT 063; Glynn v Body Corporate for Expansion Court [2012] QCAT 321.

18. I find that there is no basis upon which this Tribunal may order an adjustment to the contribution schedule.